How Workplace Retaliation Occurs

There are a number of state and federal laws that help protect employees from discrimination and harassment in the workplace. What many employees in California may not be aware of is the fact that these laws also protect them from retaliation. In employment law, retaliation refers to an employer punishing an employee for taking action against discrimination, safety code violations, harassment, fraud, embezzlement, or other illegal activity in the workplace.

Retaliation can take many forms, including an employer firing the employee, demoting him/her, or making the workplace too hostile for the employee to stand. Retaliation is a complicated area of law and claims can be time sensitive, so it is imperative to seek legal advice as early as possible. If you have been a victim of workplace retaliation, the Workers’ Advocate Law Group can help stand up against your employer.

Types of Retaliation:

After Taking FMLA leave
The Family and Medical Leave Act (FMLA) is a federal law that allows eligible employees unpaid leave each year. It can be up to 3 months, for specific medical reasons and/or issues concerning their family.

After Reporting Fraud
This can happen after an employee reports illegal actions taking place by their employer. The company may take it out on the employee in a variety of ways which could include getting wrongfully terminated or demoted.

After Reporting Harassment or Discrimination
Retaliation can take many forms after an employee reports harassment or retaliation. This can include effects include firing, demotion, relocation, reduction in hours, and much more.

After Taking Medical Leave
Every employee is entitled to take medical leave, but in some cases they could face a backlash from their employer which is against the law.

What Does Workplace Retaliation Look Like?

Retaliation in the workplace is the most frequently alleged basis of discrimination in the workplace, according to the U.S. Equal Employment Opportunity Commission (EEOC).

Your employer cannot fire you or retaliate against you if you are engaged in the following types of protected activities:

• You have filed a complaint with the EEOC or are a witness in a complaint, investigation or lawsuit.
• You have been communicating with a supervisor or manager about employment discrimination and/or harassment.
• You answered questions during an employer investigation of alleged harassment.
• You refused to follow orders that would result in discriminatory behavior.
• You resisted sexual advances or stood up to protect a colleague from harassment.
• You requested accommodation for a disability or to pursue a religious practice.
• You asked managers or colleagues about salary information to uncover potentially discriminatory wages.

It is important to note that participating in the complaint process is protected from retaliation under all circumstances. Other acts in opposition of workplace discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate federal laws. However, engaging in protected activity does not necessarily shield employees from discipline or discharge.

If the negative action was motivated by non-retaliatory and non-discriminatory reasons, employers may discipline or even terminate employees. However, our Los Angeles employment lawyers often observe that when there has been discrimination or harassment in a workplace, an adverse action taken against employees who complained or participated in the complaint process, tends to be retaliatory in nature. Employers are also not allowed to do anything in response to a protected activity that would discourage someone from resisting or complaining about future discrimination.

Some concrete examples of adverse or negative action an employer might take against an employee as retaliation for participating in protected activity:

• Reprimanding the employee or giving a job performance evaluation that is unfair or poorer than it should be.
• Transferring the employee to a less desirable position.
• Engaging in verbal or physical abuse.
• Threatening to make or actually make reports to authorities. This might include threatening to report an employee to immigration officials or to the police.
• Increasing scrutiny of an employee without proper justification.
• Spreading lies or rumors about the employee.
• Making the person’s work more difficult by changing his or her scheduling or moving him or her to a different location that is difficult to travel to.
• Changing the employee’s job duties to something less desirable.
• Imposing a salary reduction.

How To Prove Retaliation In The Workplace

Although the workplace retaliation laws are clear on what amounts to retaliation, it can often be difficult to show that retaliation has in fact occurred. This is because retaliatory acts can be subtle in many cases, making them harder to detect.

To establish a claim for retaliation, workers are usually required to show that:

• They participated in a protected activity
• They suffered an adverse employment action from the employer
• Participation in the protected activity was a substantial motivating reason for the occurrence of the adverse employment action
• They suffered harm; and
• The adverse employment action was a substantial factor in causing the harm.

Once an employee makes a case for retaliation, the employer must respond by showing that there was a legitimate, non-retaliatory reason for the negative employment action.

What if it turns out that your employer did not do anything wrong? It is important to keep in mind that the purpose of the law is to prevent employers from blocking the exercise of employee rights. As a result, it does not matter if the employer was not actually doing anything wrong before a complaint was made. If you genuinely believed you were engaging in a protected activity and you suffered retaliation as a result, you still have a right to compensation.

However, it must have been clear that you intended to and actually were engaged in a specific protected activity. It must not have been vague, general or relating to personal grievances.

How To FIle a Retaliation Claim In California?

Finally, there are several ways to file a retaliation claim in California. Most of these depend on the law under which you are claiming relief against retaliation. You may be required to follow separate procedures or approach different agencies. Here are some of the procedures:

• Common law: For a claim of retaliation in violation of public policy, you are entitled to file a tort lawsuit against your employer. This means you can go straight to court and sue your employer with the aid of a workplace retaliation attorney.
• Whistleblower retaliation: Victims of whistleblower retaliation under Labor Code 1102.5 LC are required to first notify the California Labor and Workplace Development Agency. After notifying the agency, and also your employer via certified mail, the agency may investigate your complaint. If it chooses not to, you can go ahead to file a lawsuit, within 2 years.
• FEHA: For retaliation under FEHA, the law requires aggrieved employees to file an initial complaint with the California Department of Fair Employment and Housing (DFEH). Your complaint will be investigated and DFEH will issue a ‘right to sue’ notice to let you file a lawsuit, within the next 1 year.
• False Claims Act: If you were retaliated against under the False Claims Act, you can go right ahead to file a lawsuit.
• Occupational safety and health: You are required to file a complaint with the California Division of Labor Standards Enforcement. This must be done within 6 months of the retaliatory action.
• Workers’ compensation: These complaints are required to be filed with the California Division of Workers’ Compensation, also within 1 year.

Count on an experienced lawyer from Workers’ Advocate Law Group who has extensive experience in fighting for their clients’ employment rights. You can contact our firm online to schedule your free consultation in English or Spanish today. Our team will be more than happy to assist you accordingly.